FILED: NEW YORK COUNTY CLERK 02/07/ :51 PM

Transcription

1 Exhibit G

2 FILED: NEW YORK COUNTY CLERK 10/25/ /07/ :42 02:51 PM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 10/25/ /07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Index No.: /2015 STEPHEN ALBERGHINI, Plaintiff, - against - VERIFIED ANSWER and CROSS-CLAIMS VARTEL NY CONSTRUCTION CORP., RELIGIOUS ZIONISTS OF AMERICA, MIZRACHI-HAPOEL HAMIZRACHI, INC., 25 WEST 26 TH STREET, INC., and NOAM CORPORATION, Defendants x Defendant BDM Solutions, LLC ( BDM ), through its attorneys, King & King, LLP, responds to the verified complaint as follows: 1. Defendant BDM denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 1, 2, 3, 4, 5, 6, 7, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47 of the complaint. 2. Defendant BDM admits the allegations set forth in paragraph 8 of the complaint. 3. Defendant BDM denies truth of the allegations set forth in paragraphs 9, 10, 11, 12, 13, 14, 48, 49, 51, 52 and 53 of the complaint. 4. Defendant BDM responds to the allegations referenced in paragraph 50 of the complaint in the same manner that it responded to the allegations in the paragraph referenced. AFFIRMATIVE DEFENSES 5. Plaintiff has failed to state a cause of action against the answering defendant. 1 1 of 7

3 6. Defendant has not violated any legal duty owing by it to the plaintiff. 7. Any damages sustained by the plaintiff was the result of its own acts. 8. Plaintiff failed to mitigate its damages. 9. Plaintiff has not been harmed. 10. Plaintiff has suffered no damages caused by and of answering defendant s acts alleged in the complaint. 11. Defendant has performed all of its statutory, contractual and ethical owed duties to the plaintiff, if any. 12. Plaintiff s claims are barred because he failed to commence suit within the applicable limitations periods. 13. Plaintiff s comparative fault caused or contributed to the damages complained of in this case. 14. Plaintiff was aware of and knew about the risk of the activity that allegedly caused his injury, and he voluntarily undertook the risk that led to the accident or injuries complained of in this case. 15. People or entities other than the answering defendant caused or contributed to the damages plaintiff claims to have suffered. Therefore any award made in favor of the plaintiff in this case must be reduced by an amount equal to the percentage of the fault of others in causing or contributing to the damages as alleged in the complaint. 16. Defendants other than the answering defendant caused or contributed to the damages plaintiff claims to have suffered. Therefore any award made in favor of the plaintiff in this case must 2 2 of 7

4 be divided between the defendants so that each pays only his, her or its fair share in relationship to his, her or its amount of fault. 17. Plaintiff waited too long to file this law suit, making it difficult or impossible for defendant to find witnesses or evidence to defend the case, and plaintiff s claims should be dismissed by virtue of the principle of latches. 18. Plaintiff led the answering defendant to believe, that plaintiff would not sue this defendant, and plaintiff s claims should be dismissed by virtue of the principle of waiver. 19. Plaintiff acted in such a way as to cause the answering defendant to believe that plaintiff would not file suit, and defendant relied on those actions or representations. 20. Plaintiff failed to file and pursue a claim with the responsible government agency before filing this lawsuit. 21. The damages the plaintiff claims to have suffered were caused or made worse by an event that occurred after the accident described in the complaint. 22. The damages the plaintiff claims to have suffered were caused by an event that occurred after the accident described in the complaint, thus the answering defendant is not responsible for plaintiff s claimed damages. 23. Defendant is entitled to the benefits of the application of New York General Obligations Law, specifically Section Defendant is entitled to the benefits of the application of CPLR Article Defendant is entitled to the benefits of the application of CPLR Section Defendant reserves the right to interpose such other defenses and objections as continuing investigation may disclose. 3 3 of 7

5 FIRST CROSS-CLAIM (Common Law Indemnity and/or Contribution) 27. Defendant BDM Solutions, LLC ( BDM ) is a New York entity, with its place of business at th Street, Astoria, NY Upon information and belief, that if or in the event that plaintiff sustained injuries and damages complained or, such injuries and damages were caused entirely by reason of the wrongful and/or negligent conduct of the co-defendants, and there being no active or primary wrong-doing by the answering defendant. 29. And, by reason of the above, the answering defendant is entitled to indemnity from, and to judgment over and against co-defendants for all or any portion of the verdict or judgment which plaintiff may recover against the answering defendant. SECOND CROSS-CLAIM (Contractual Indemnity) 30. Upon information and belief, pursuant to an agreement or agreements, codefendants agreed to indemnify and hold harmless the answering defendant against all causes of actions, claims or other demands. 31. If answering defendant is held liable, co-defendants owe the answering defendant such indemnity, including the duty to reimburse the answering defendant for all costs and expenses, including attorney fees in defending this action. THIRD CROSS-CLAIM (Breach) 32. Upon information and belief, co-defendants entered into agreements pursuant to which co-defendants agreed to perform certain duties and obligations owed to the answering 4 4 of 7

6 defendants, including but not limited to the obligation to obtain proper insurance coverage. 33. Upon information and belief, co-defendants breached such duties and obligations. 34. The answering defendant is and continues to be damages as a result of such breach, in a sum to be determined at the trial of this action. WHEREFORE, BDM seeks judgment: a) Dismissing the verified complaint; b) On its cross-claims in a sum to be determined at the trial of this action; and, c) For such other and further relief as to this Court seems just and proper under the circumstances. Dated: October 25, 2016 Pelham, New York KING & KING, LLP By: Peter M. Kutil Peter M. Kutil, Esq. Attorneys for Defendant BDM The Sanborn Map Building 629 Fifth Avenue Bldg. 3 (#113) Pelham, N.Y To: David A. Kapelman, Esq. David A. Kapelman, P.C. 3 West 35 th Street New York, N.Y of 7

7 VERIFICATION BY ATTORNEY I, Peter M. Kutil, am an attorney admitted to practice law in the courts of New York State, and certify that I am the attorney of record for the defendant BDM Solutions, LLC, and I have read the Verified Answer dated October 25, 2016 in this action and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief as to those matters therein not stated upon knowledge, is based upon the following: discussions and information that I received from my client. The reason that I make this certification and affirmation instead of BDM Solutions, LLC is that its place of business is in a different County than my office which is in Westchester County. I affirm that the foregoing statements are true under penalty of perjury. Dated: October 25, 2016 Pelham, New York Peter M. Kutil Peter M. Kutil 6 6 of 7

8 Index No.: /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEPHEN ALBERGHINI, - against - Plaintiff, VARTEL NY CONSTRUCTION CORP., RELIGIOUS ZIONISTS OF AMERICA, MIZRACHI-HAPOEL HAMIZRACHI, INC., 25 WEST 26 TH STREET, INC., and NOAM CORPORATION, Defendants. Pursuant to 22 NYCRR , the undersigned, an attorney duly admitted to practice law in the Courts of New York state, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: October 25, 2016 Peter M. Kutil Peter M. Kutil, Esq. VERIFIED ANSWER and CROSS-CLAIMS LAW OFFICES KING & KING LLP THE SANBORN MAP BUILDING 629 Fifth Avenue Bldg. 3 Pelham, N.Y pkutil@king-king-law.com 7 7 of 7